Bad Science and Failed Freedom Protections in the HHS Mandate

The latest proposed amendment to the HHS mandate still draws on empirically unsound data and violates religious freedom.

The controversy over the Department of Health and Human Services (HHS) contraceptive mandate is bound to increase, thanks to its latest proposed fix announced last Friday. The rules proposed to be amended are those issued by HHS last year, requiring employers—including religious institutions and individuals and corporations that embrace religious principles—to provide, without co-pay, contraceptives, sterilization, and emergency contraceptives that can destroy a human embryo.

The original mandate came when HHS fully adopted the recommendations of the Institute of Medicine (IOM) report “Clinical Preventive Services for Women: Closing the Gaps.” This report claimed that American women were suffering a crisis of “unintended pregnancy,” a crisis that could be resolved most effectively by requiring employers to provide women, free of charge, the “full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” 1

With last Friday’s rules, the government is claiming that after a year of a mostly losing record of religious freedom lawsuits, it has struck the perfect balance between two urgent goals: getting contraception into the hands of as many American women and girls as possible, and protecting Americans’ religious freedom.

The truth of the matter is quite different.

There are myriad problems inherent in the new rules. They still fail to protect the legally guaranteed religious freedom of religious institutions, for-profit employers, insurers, non-religious non-profit organizations, and individuals. Religious liberty is protected not only by the First Amendment of our Constitution, but also by the Religious Freedom Restoration Act.

They fail to understand the full nature of the free exercise of religion—that religion, whether practiced individually or by a group, requires being able to integrate one’s actions with one’s religious beliefs, especially when these don’t attack but advance the common good—here, the health and well-being of women and girls.

They trample on parents’ constitutionally-protected right to direct the upbringing of their daughters. And they reveal, still, an irrational zeal for a narrow category of drugs and devices, thus evincing a narrow and harmful understanding of women’s freedom as coincident with sexual expression.

Moreover, while the government tries to make us think that the new rules are hospitable to religious freedom, we shouldn’t overlook its continued failure to admit the bankruptcy of the mandate’s grounding “medical” claim: that unintended pregnancy is a kind of health crisis properly resolved with free contraception and early abortions.

The IOM Report is Empirically Unsound

Consider some background on the IOM report that detailed the putative urgent need for free contraception. The report was crafted by hard-line ideological partisans, pre-committed to the results they ultimately advocated, after holding “public hearings” at which most invited witnesses were similarly ideologically committed. The largest nonprofit providers of private health services to women in the United States—Catholic hospitals—were not invited.

The final report relied entirely on sources written or published by invited witnesses—including the nation’s most prominent advocates for abortion and large-scale contraception programs. These claimed, in the face of myriad empirical studies to the contrary, that reducing the price of contraception, sterilization, and emergency contraceptives to zero would inevitably reduce the numbers both of unintended pregnancies and abortions.

In a long and detailed piece in the Spring 2013 issue of the Villanova Law Review, I take these claims apart line by line and study by study. Here I can say this: First, the government is not using reliable figures for measuring unintended pregnancies. Second, the small number of sexually active women who aren’t using contraception do not cite cost as an important factor. Rather, they reject contraception for a variety of other reasons, including dissatisfaction with its side effects, fears about its health consequences, and religious and moral reasons.

Finally, a several-decades-long “experiment” with the relationship between widely available contraception and rates of unintended pregnancy shows the following results, which directly contradict the IOM’s claims: It is the women who have been receiving free birth control for decades, who are the most likely today to experience unintended pregnancies, non-marital pregnancies, and abortions. Even among American women generally, rates of unintended pregnancy, non-marital pregnancies, and abortions have risen, not fallen, alongside the vastly expanded availability of both contraception and abortion. There is simply no evidence that making contraception “free” among employed women and their daughters will lower the national rate of unintended pregnancy, or abortions.

The Proposed Amendment Still Violates Religious Freedom

Even assuming that the mandate had empirically sound grounds, it continues to violate both the letter and the spirit of the First Amendment and the Religious Freedom Restoration Act.

The proposed amended rule continues to draw lines that protect the religious freedom of some religious persons or institutions, but not all. Houses of worship, associations of churches, and religious orders are inside the circle of protection. They are given an “exemption” from the mandate. Non-profit religious employers that are not churches, and who self-certify regarding their religious objections to the mandate, however, do not have an exemption. Rather, they have received an “accommodation.” They will be required to purchase health insurance for their employees, and the insurance provider will then offer their employees and their children a “separate policy”—allegedly without involving or charging the employer—covering contraceptives and early abortifacients.

In other words, the government has inserted itself and its message between the employer and its employee, and even between the employee and his or her daughters who have reached the age of puberty or beyond. In contrast to former proposals by the government that the insurance companies would “offer” contraception and abortifacient insurance to women and girls, the new rules would “automatically” extend such coverage to women and girls, including associated “counseling and education.”

As to everyone else? Individuals with religious or moral objections to contraception and abortion? For-profit employers? Insurers? Non-religious non-profits? These individuals and institutions remain wholly unprotected.

In addition to its failure to protect these many groups and individuals,the problems with this proposal are legion. First, the government is still drawing lines between different kinds of religious institutions and deciding which ones are sufficiently religious to merit a complete exemption. Particularly with respect to institutions founded for and devoted to human services such as education and health care, explicitly upon religious grounds, this is disturbing, and illegal.

Second, by instituting some financial and administrative distance between some religious institutions and their health insurers issuing contraception policies, the government is encouraging religious institutions and the public to believe that it has adequately assuaged all conscience concerns. But of course it has not, since faithful individuals, for-profit employers, insurers, and non-religious non-profit organizations remain unprotected under the proposed rule. Happily, in the current mass of litigation about the mandate, some for-profit companies run by religiously motivated families and individuals are winning religious freedom claims. Religious institutions, and all kinds of companies and individuals motivated by faith, would do well to stand together in the future, despite the government’s attempts to divide them.

Third, the government is still using allegedly protected religious institutions—those “accommodated” such that insurance companies will be charged with the cost and the work of providing contraceptives and abortifacients—to funnel these drugs and devices to women and girls. Does anyone really believe that employees will not associate their employers with every policy and every service covered by the insurance company picked for them by their employer? The insurance company that is ordinarily brought in by management to meet all employees and to discuss the contents and procedures associated with their coverage? Surely, at the very least, “scandal” is a factor when, in the presence of religious employers and their employees, Insurance Company X is explaining all of the contraceptives, abortifacients, and sterilization procedures now available to the employees and even to the daughters of every employee, as triggered by their employers’ choice to hire Insurance Company X to provide health insurance benefits.

Fourth, the proposed amendment tramples parents’ rights. Whereas in earlier versions of the regulations, the administration proposed that women and girls would be “offered” insurance coverage for free contraception and early abortifacients if they so desired, the new regulations contemplate “automatic” enrollment for the same drugs and devices, and associated “patient education and counseling,” combined with a concerted, government-supported push by insurers to reach both women and minor girls with “patient education and counseling” on the availability of no-cost contraception, heedless of whether parents wish their daughters to have such information.

Parents have a constitutional right to the care and custody of children. It is one of the oldest aspects of the substantive due process guarantees of the Fourteenth Amendment to the Constitution. See Meyer v. Nebraska, 262 U.S. 390 (1923). Surely, this provision runs afoul of that.

Fifth and finally, these proposed regulations show the government’s standing obsession with this narrow piece of the Affordable Care Act. From August 2011 to today, the White House and HHS have expended enormous amounts of time, written hundreds of pages of rules and amended rules and “safe harbor” provisions, occupied press conference time, re-election campaign ads, and delivered speeches—all to promote the notion that free contraception and early abortifacients are the near sum of women’s freedom.

At no time has the government publicly addressed the data indicating that free contraception and abortifacients have not delivered the social results they claim to seek—fewer unintended pregnancies and abortion. Nor has the government paused to consider the true and necessary scope of religious freedom in the United States.

To exercise one’s faith is to be allowed to live a fully honest and integrated life according to the teachings of one’s faith. To be light to the world. It is not merely to speak privately with God, to worship God, to believe this or that in the depths of your person. It is to live out what you believe to be true about the meaning of life, and what you believe is owed both to God and your neighbor. Religious education, religious health care, religious social services, have demonstrated what this looks like in communities in every corner of the United States, over the course of hundreds of years. The results are beautiful, as ordinary citizens would attest.

A fear that this is a recipe for “anarchy”—especially in the case of religious persons living out their faith in the context of sex, marriage, and family—have proved unwarranted during the American experiment. In fact, the opposite has been true. Religious believers and institutions—in their sexual mores and in their family lives, in their social and health care and educational services delivered with a special tenderness to the poor and the outcast and the underserved—have strengthened children, women, couples, and communities. There is simply no reason for the government to tell religious institutions and individuals to hide their witness, to cease their contributions, or how they are to live out their beliefs, especially today when their churches’ teachings so clearly promote goods and goals shared widely by Americans.

Helen Alvaré is an associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute.